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  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
  • Ana Pastrana, Carmen Quinio v. Peter Girani, Egidio Girani, Jacqueline LarrocaTort document preview
						
                                

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INDEX-NO. 700946/2011 (FILED: QUEENS COUNTY CLERK 1072872013) NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/28/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS nen peennennnnen cnn xX ANA PASTRANA and CARMEN QUINIO, Index No.: 700946/2011 Plaintiffs, NOTICE OF CROSS-MOTION -against- Assigned To: Hon. Augustus C. Agate PETER GIRANI, EGIDIO GIRANI and JACQUELINE LARROCA, Defendants Re D er 12, 2 pone eee nee nee en ene ennee nnn: ——X MOVING PARTY: PICCIANO & SCAHILL, P.C. Attorneys for Defendant JACQUELINE LARROCA RETURN DATE, TIME & PLACE: November 12, 2013, Centralized Motion Part, Courtroom 25, located at 88-11 Sutphin Boulevard, Jamaica, New York 11435 at 2:15 p.m. SUPPORTING PAPERS: Affirmation of ANDREA E. FERRUCCI and Annexed Exhibits. RELIEF REQUESTED: An Order, pursuant to CPLR Section 3212, for summary judgment due to plaintiff's failure to meet the threshold limits set by New York State Insurance Law, Section 5102 and 5104. ANSWERING AFFIDAVITS: Must be served at least 7 days prior to the return date of this motion, pursuant to CPLR 2214(b). CERTIFICATION: Pursuant to 22 NYCRR 130-1.1, it is hereby certified that to the best of the undersigned’s _. knowledge, information and belief formed after an inquiry reasonable under the circumstances, the presentation of the annexed papers or contentions therein are not frivolous as defined by 22 NYCRR 1.1 (c). Dated: Westbury, New York October 24, 2013 @ etc., [ VA fh by Ve DREA E. FER RUCCI RICCIANO & S' PAHILL, P.C Attorneys for De efendant JACQUELINE LARROCA 900 Merchants Concourse, Suite 310 Westbury, New York 11590 (516) 294-5200 Our File No.: 0326955350101012 TO! ZWIRN & SAULINO, P.C Attorneys for Plaintiffs 2606 East 15" Street, Suite 205 Brooklyn, New York 11235 (718) 615-7400 Your File No.: 11-1513 SHAYNE, DACHS, SAUER & DACHS, LLP Attorneys for Defendants PETER GIRANI and EGIDIO GIRANI 114 Old Country Road, Suite 410 Mineola, New York 11501 (516) 747-1100 Matter No.: SW-728 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS —_ ne. on ANA PASTRANA and CARMEN QUINIO, Index No.: 700946/2011 Plaintiffs, AFFIRMATION -against- PETER GIRANI, EGIDIO GIRANI and JACQUELINE LARROCA, Defendants. nn en ee en ete ——-X ANDREA E. FERRUCCI, an attorney duly licensed to practice law in the Courts of the State of New York, under penalty of perjury, affirms the following: 1 I am an associate of the law firm of Picciano & Scahill, P.C., attorneys for the defendant, JACQUELINE LARROCA, and as such, I am fully familiar with the facts, circumstances and pleadings in the above action. 2 I make this affirmation in support of the within motion for an Order, pursuant to CPLR Section 3212, granting summary judgment in favor of the defendant, JACQUELINE LAROCCA, as against the plaintiff, ANA PASTRANA, on her complaint. 3 The above captioned action represents a claim for bodily injury allegedly sustained by the plaintiff, ANA PASTRANA, following a motor vehicle accident, which occurred on July 26, 2010, at approximately 2:03 p.m. on Francis Lewis Boulevard at its intersection with 47" Avenue, Queens County, New York. _ 4 This action was instituted by the service of a summons and complaint upon the defendant, JACQUELINE LAROCCA, on or about December 7, 2011. Issue was joined with the defendant, JACQUELINE LAROCCA, by the service of a verified answer on March 5, 2012, Issue was jointed with the defendants, PETER GIRANI and EGIDIO GIRANI, by the service of a verified answer on March 14, 2012. A copy of the plaintiff's summons and complaint and the pleadings thereto are annexed hereto and made a part hereof as Exhibit “A”. 5 The plaintiff, ANA. PASTRANA, alleges to have sustained the following injuries as set forth in the plaintiffs verified bill of particulars, a copy of which is annexed hereto and made a part hereof as Exhibit “B”. e Multilevel cervical disc herniations with broad-based disc herniations at C4-5 and C5-6 with ventral epidural space effacement and proximal right neural foraminal stenosis at C5-6; Left paracentral disc herniation at C6-7 with cord indentation and proximal left neural foraminal stenosis; C6 radiculopathy on the right; Traumatic paracervical myofascitis with right radiculitis; e Herniated cervical discs with right radiculopathy. 6 A close review of the medical records in this proceeding will prove to this Court that the plaintiff did not suffer a "serious injury" as required by New York State Insurance Law Section 5101, et seq., Licari_v. Elliot, 57 N.Y.2d 230 (1982) and its progeny. 7 On August 5, 2013, the plaintiff, Ana Pastrana, was examined by Dr. Lisa Nason, at the request of the defendant herein. Dr. Nason’s affirmed medical report is annexed hereto and made a part hereof as Exhibit “C”. Dr. Nason‘s examination revealed full range of motion of the cervical and lumbar spines. Dr. Nason also found the plaintiff to The cervical foraminal compression test was negative. Dr. Nason concluded after a review of the plaintiff's medical records and a thorough physical examination as follows: “Status post cervical and lumbar sprain/strain, resolved.” “Based on today’s findings, it is my opinion that claimant may work as a customer service representative and perform her daily living activities without boundaries or restrictions.” 8 On August 12, 2012, the plaintiff, ANA PASTRANA, was examined by Dr. Jean-Robert Desrouleaux at the request of the defendant herein. Dr. Desrouleaux’s affirmed medical report is annexed hereto and made a part hereof as Exhibit “D”. Dr. Desrouleaux’s examination revealed full cervical and lumbar spine range of motion. Dr. Desrouleaux concluded after a thorough physical examination and review of the medical records as follows: “Status post cervical and myofascitis, resolved.” “The claimant is able to function in her pre-accident capacity and carry out work duties and day-to-day activities without neurologic restriction.” 9. A copy of the plaintiff, ANA PASTRANA,! examination before trial is annexed hereto and made a part of Exhibit “E”. ° The plaintiff was involved in a motor vehicle accident on July 26, 2010. Pages 6-7. As a result of the accident, the plaintiff's neck and right shoulder struck the right door. Pages 43-44, Police arrived at the scene and spoke with the plaintiff at the scene. Page 40, The plaintiff mace complaints regarding her neck and back to the officer. Page 40. The plaintiff did not ask for an ambulance nor was one offered. Page 40. The plaintiff left the scene in the same vehicle that was involved in the accident. Page 41. The plaintiff never sought treatment at a hospital as a result of the subject accident. Page 48. The plaintiff first sought treatment on the day following the accident at a doctor's office located on Metropolitan Avenue. Pages 46-47, The plaintiff made complaints regarding her neck and back. Page 53. On her first visit with the doctor, she was told she was going to be sent for an MRI. Page 54. + Your affirmant’s office was only provided a copy of the plaintiff, Ana Pastrana’s ‘transcript. Upon information and belief co-defendants, Peter Girani and Egidio Girani, forwarded the transcript to plaintiff's counsel in compliance with CPLR 3116 for review and execution. The plaintiff began a course of treatment at the Metropolitan Avenue facility which consisted of massage, acupuncture, electrical stimulation, and heat therapy. Pages 58-62. The plaintiff went to therapy for approximately six to eight (6-8) months. Page 62. The plaintiff was never recommended for surgery as a result of the subject accident. Page 115. The plaintiff has not sought any further medical treatment regarding the injuries from this accident since the spring of 2011. Pages 87-89. The plaintiff was never examined by a psychologist. Page 85. Approximately two years prior to the plaintiff was an “off the books” babysitter. Pages 82-83. Prior to the accident, the plaintiff was employed, “off the books” part-time (32 hours a week) as a waitress at an Italian restaurant. Pages 65-69. The plaintiff did not return to her waitressing position following the accident for personal reasons and not for anything to do with her physical condition following the subject accident. Page 115. The plaintiff could not recall receiving any government aid 2009 and did not receive any government aid in 2010. Page 84. On the date of the deposition the plaintiff was employed, full-time, by Huffman Koos in customer service for approximately one year. Pages 91-92. e On the date of the accident, in addition to being a waitress, the plaintiff was also employed at a surgical supply company. Pages 103-105. ¢ The plaintiff did not return to the surgical supply company following the accident for personal reasons and not for any injuries related to the subject accident. Page 115. The plaintiff was ever confined to her home or bed as a result of this accident. Page 113. 10. It Is evident from a review of the plaintiff's medical records, the affirmed medical reports of Dr. Lisa Nason and Dr. Jean-Robert Desrouleaux and the plaintiff's deposition transcript that the plaintiff in this matter did not sustain serious injuries and should not be allowed compensation outside of the no-fault system. The plaintiff’s deposition testimony indicates that she ceased her employment following the subject accident due to personal reasons and not due her physical condition following the subject accident. Furthermore, her testimony indicates that she was able to seek further employment following the subject accident. Finally, it must be noted that the plaintiff clearly testified that she was fever confined to her home or bed as a result of the subject accident. As such, the plaintiff's testimony was insufficient to demonstrate that she was restricted from “substantially all” of her usual and daily customary activities as a result of the subject accident for the required 90/180 day period. See Cantave v. Gelle, 60 AD 3d 988. Rather her testimony indicated that the cessation of her employment was the result of unrelated personal issues. 11. Even if the plaintiff was to submit evidence that she suffered from herniated discs and bulging discs, such injuries do not in and of themselves constitute serious injury. See Noble v. Ackerman, 252 A.D.2d 392, 394 (2™ Dept 1998) c.f. Puma _v. Player, 233 A.D.2d 308; Guzman v. Paul MichaelManagement, 266 A.D. 2d 508 (1999). Rather, the plaintiff is required to "provide objective evidence of the extent or degree of the alleged physical limitation resulting from the injuries and their duration.” Noble _v. Ackerman, supra at 394; Arjona v. Calcano, 7. A.D.3d. 279 (2004). 12. Pursuant to Sections 5102 and 5104 of the Insurance Law, an individual may not institute an action for personal injuries arising out of an automobile accident unless that individual has suffered a "serious" injury. A "serious" injury is statutorily defined as: “death; dismemberment; significant disfigurement; fracture; loss of fetus; permanent loss of use of a body, organ, member, function or system; permanent consequential limitation of use of a body organ, significant limitation of use of a body function or system; an injury or impairment of a non-permanent nature which prevents the injured person from substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment." For example, in Harrel v. Miles, 603 N.Y.S.2d 894 (1993), an injury involving a narrowed intervertebral disc space, post concussion syndrome and a lumbar sprain without neurological complications did not meet the definition of "serious". 13. The legislative purpose in enacting these sections was to “...significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium". (Memorandum of State Executive Dept., 1977 McKinney's Session Laws of N.Y., p. 2448). These statutes place "...a reasonable restriction and further limitation on the right to sue, in order to preserve the valuable benefits of no fault, at an affordable cost." (1977 McKinney's Session Laws of N.Y., p. 2450). The curtailment of costly and lengthy court trials, however, is not the sole purpose of the no-fault law. The legislature also intended to eliminate litigation involving minor, insignificant or specious personal injuries arising from automobile accidents. Requiring that every case, regardless of the extent of the injuries, be decided by a jury would subvert the intent of the legislature and destroy the effectiveness of the statute. Thus, it is intended that the Court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that are excluded from judicial remedy, under no fault. (See Licari v. Elliot, 57 N.Y.2d 230 (1982) and Stossell v. Fleyshmahker, 117 Misc.2d 454 (1983); Velez v. Cohan, 203 A.D. 2d 156. 14. (a) Permanent Loss of Use of a Body Organ, Member, Function or System Permanent Consequential Limitation of a Body Organ or Member: In order for an injury to qualify as a permanent loss of use, or a permanent consequential limitation, the injury must be permanent, it must cause a limitation or a loss of use, and it must be causally related to the accident. The term permanent 10 "consequential" loss is used “in the sense of important or significant." 1 NY PJI 288A [2d ed] [1983 Supp], p.101. Dwyer v, Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781; See Booker v. Miller, 258 A.D. 2d 783. Acute cervical and lower back sprains resulting in neck and back pains, (Keena_v. Trappen, 294 A.D. 2d 405 (2002); DeFillipo v. White, 101 A.D.2d 801 (1984); Maenza v. Letkajornsook, 172 A.D.2d 500; 567 N.Y.S.2d 850 (1991); Godden _ Carman, 169 A.D.2d 812; 565 N.Y.S.2d'181 (1991), Hemmes v. Twedt 580 N.Y.S.2d 510 (1992); and fear of driving, being in automobiles and nightmares requiring psychotherapy (Nolan v. Ford, 100 A.D. 2d 579 (1985)) do not qualify as a permanent "consequential" loss. The allegation of permanency must be substantiated by credible medical evidence; mere allegations contained in the pleadings, in the plaintiff's affidavit, or in the attorney's affidavit, are insufficient to prove permanency. (See Ferguson v. Temmons, 79 A.D.2d 1090). Any medical evidence offered in support of a claim of permanency must contain objective findings of permanency. It has been specifically held by the Appellate Division that a medical doctor's analysis, which is essentially an exercise in speculation, especially when based on the subjective complaints of the plaintiff, does not rise to the level of credible medical evidence required to support a claim of permanency. (See: Dwyer v. Tracey, 105 A.D.2d 476; 480 N.Y.S.2d 781 (1984); Torres v. Silva 508 N.Y.S.2d 523 (1986); Saladino v. Meury, 597 N.Y.S.2d 713 (1993). Conclusory statements by a physician, than an injury is "permanent", are insufficient as a matter of law. See Vaughan v. Baez, 305 A.D. 2d 101 (2003); Williams v. Howe, 297 A.D. 2d 671 (2002). If the injury is superficial or temporary in nature, it clearly fails to meet the ll threshold. Allegations of pain, whether constant or intermittent, if unsupported by objective medical proof, are likewise insufficient to meet the threshold. See Copland v, Kasalica, 6 A.D. 3d 253 (2004). The Court of Appeals has specifically held that a medical report, indicating that plaintiff's injuries "may" be permanent, is insufficient proof of permanency. (See Jones v. Sharpe, 472 N.Y.S.2d 779, affd 479 N.Y.S.2d 520; Mickelson v. Padang, 237 A.D. 2d 495 (1997)). If loss of use, or limitation of use is to be shown, objective medical evidence must show that the body organ, member, function or system operates only on a limited basis, or operates fully, but with concurrent pain. (See: Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781 (1984). An injury involving only a mild limitation or mild discomfort does not meet the threshold. (See Licari v. Elliot, 57 N.Y.2d 230; see Bader v. Santana, 483 N.Y.S.2d 143; Philpotts v. Petrovic 554 N.Y.S.2d 289 (1990); Coughton v. Donnelly, 567 N.Y.S.2d 835, 1722 A.D.2d 480 (1991). The Court of Appeals has held, for example, that a burning, snapping sensation in the knee, even when confirmed by a neurologist's nerve conduction study, yet which allows the plaintiff to perform essentially the same work after the injury, does not qualify as a "serious" injury. (See Jones v. Sharpe, 472 N.Y.S.2d 779, affd 479 N.Y.S.2d 520). In short, the plaintiff must not only suffer “an injury", to meet the threshold, he must demonstrate that he has suffered a "serious injury", within the statutory definitions, (See Licari_v. Elliot, supra). As with allegations of permanency, the allegations of loss of use, or limitation of use, must also be substantiated with credible objective medical evidence. 12 (b) Significant Limitation of Use of aFunction Body or System A significant limitation of use is one which involved more than merely minor pain or limitation of use. A minor, mild, temporary, or slight limitation of use is an insignificant limitation, and does not meet the threshold as a matter of law. (See Licari v. Elliot, 57 N.Y.2d 2309 (1982); Thrall v. City of Syracuse, 464 N.Y.S.2d 1022, rev'd 411 N.Y.S.2d 51); Ray v. Ficchi, 578 N.Y.S.2d 944 (1991). For example, it has been held that second degree burns to the back and arm, covering fifteen (15%) percent of the body, causing pain in the abduction of the arm, and discomfort in sleeping for a period of two (2) months, is only a "mild limitation" or "temporary discomfort". (See Bader v. Santana, 483 N.Y.S.2d 143). Mere straightening of the lordotic curve and even persistent headaches. (See Davies v. Johnson, 110 Misc. 381), or an arm injury which does not disrupt overall functioning (See Thrall_v. Syracuse, 471 N.Y.S.2d 51, rev. 464 N.Y.S.2d 1022), do not qualify as "significant limitation of use of body function or system". The allegation of “significant limitation” must, again, be substantiated by credible objective medical evidence. Mere allegations contained in the plaintiff's affidavit, his attorney's affidavit, or in the pleadings, are insufficient to prove a "significant limitation". (See Jones v. Sharpe, 472 N.YS.2d 779, aff'd 479 N.Y.S.2d 520); Grotzer y. Levy 133 A.D.2d 67 (1987). Vague and conclusory statements, without more, by a physician, that an injury is a "significant limitation" are insufficient as a matter of law. (See Lopez v. Senatore, 65 N.Y. 2d 1017; Zelanaks v. Clark, 567 N.Y.S.2d 92, 170 A.D.2d 677; Cantanzano v. Mei, 11, A.D. 3d 500 (2004)). It is insufficient to infer a significant limitation from a period of absence from 13 work, even if lengthy, without any medical substantiation indicating a significant limitation and thus a medical need to refrain from work. (See June v, Gonet, 298 A.D. 2d 811 (2002)). "To accept such an approach would totally frustrate the legislative intent behind “no-fault” and bring us back to square one by allowing every "whiplash" case to reach a jury through the mere stratagem of having a plaintiff stay out of work for a "significant" period of time. (See Daviero v. Johnson, 110 Misc. 2d 381). (c) Medically Determined Injury or Impairment - Non-Permanent - 90/180 Days: A tripartite test must be used to meet the threshold requirement of this section of the Insurance Law. First, the Legislature has made it abundantly clear that a disability falling within this threshold period must be proved by credible medical evidence. (See Licari_v. Elliot, 57 N.Y.S.2d 230). Where a court has determined that a medical doctor has exercised speculation based on the subjective complaints of the plaintiff as to alleged permanency or disability, it has held that such medical evidence is, by definition, tenuous and is insufficient to meet the threshold requirements as a matter of law. Such medical evidence does not rise to the level of "credible medical evidence” required to support a claim of permanency. See Giordano v. Ramos, 2 A.D. 3d 676 (2003); Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781 (1984). Secondly, the injury or disability must prevent the person from performing substantially all of this person's usual customary daily activities, "Substantially all" must be construed to mean that the person has been curtailed from performing his usual 14 activities to a great extent, rather than some slight curtailment. (See Licari v. Elliot, 57 N.Y.S.2d 230). Finally, the inability to perform substantially all of one's usual daily activities for not less than ninety (90) days during the immediate one hundred eighty (180) days following the occurrence is an absolute condition precedent, in the absence of permanency, in meeting the threshold. (See Defillipo v. White, 101 A.D.2d 801, 475 N.Y.S.2d 141); Malloy v. Brisco 583 N.Y.S.2d 290 (1992), There is no legal short-cut to this requirement. 15. The issue as to whether the plaintiff has an injury that qualifies under the New York State threshold law, is first for the Courts. In a case for summary judgment, the defendant has the initial burden of producing evidence that the plaintiff's injuries do not fall under the New York State threshold law. The plaintiff then has the "burden of coming forward with sufficient evidentiary proof...to raise a triable issue of fact as to whether he has suffered a serious injury within the meaning of the no-fault law." Zoldas vy. Louis Cab Corporation, 108 A.D.2d 378, 489 N.Y.S.2d 468; See Ocasio v. Henry, 714 N.Y.S. 2d 139 (2000). 16. The plaintiff in this proceeding fails to qualify under any of the sections of the New York State Insurance Law, previously discussed. Plaintiff did not suffer a disability which would qualify him under the 90/180 day rule. Nor did the plaintiff suffer permanent loss of use of a body organ, member, function or system or a permanent, consequential limitation of body organ or member. A careful review of the medical records attached to this motion reveal that the minor injury sustained by the plaintiff are 15 essentially the type of injuries which the Legislature sought to exclude from the Courts of our State by passage of the no-fault insurance law. 17. The plaintiff has failed to sustain his burden of demonstrating, with evidentiary facts, that a trial is required; he has failed to do more than repeat the conclusory allegations of the complaint. (See Fishman v. Nassau County, 444 N.Y.S.2d 146; Fresh Meadow Country Club v. Village of Lake Success, 158 A.D. 2d 581 (1990)). In short, there exists no triable issue of fact. WHEREFORE, it is respectfully prayed that the motion herein be granted in all respects and for such other and further relief as to this Court may be deemed just and | proper. Dated: Westbury, New York October 24, 2013. iy ( Ayfh \ NDREA E. FER 16 EXHIBIT “A” @2/98/2812 14:16 7186159468 ZWIRN AND SAULINO PC PAGE 82/14 NYSCEF Do BO. BENS A ¥GUERE 1370772017) INDEX NO. 7009467202 RECEIVED NYSCRR; 18/07/2012 INDEX no. SUPREME COURT of the STATE OF PlaintlH(s} designates NEW QUEENS YORK COUNTY OF QUEEN: eee a arn nee canteen nti County as ihe place of tol ‘The basis of venue ls ANA PASTRANA and CARMEN QUINIO, "Praintiffs Residence" SUMMONS WITH VERIFIED COMPLAINT Plaintifi(s), Plaintiff’s Residence: ~against~ 48-44 65" Street Woodside, NY 11377 PETER GIRANI, EGIDIO GIRANI and JACQUELINE LARROCA, Defendant(s), meet atta Peete treme ‘To the above named Oetandanis) - ¥QU ARE HEREBY SUMMONED to an: ewer the complaint in this action and to serve a copy of your answer, or, ifthe complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attomney(s) within 20 days afterth fe Service of this su immons, oxclusive of the day of service (or within 30 days after the service is complete If this sumi mons is not personally delivered to you within the State of New York); and in case of ‘your failure to appear or answer, judgment wil] be taken against you by default for the relief demanded herein. Dated: BROOKLYN, NEW YORK DECEMBER 7, 2011 ZWIRN & SAULINO, PC. Attorney far Plaintitt Notice: The object of this action isto Diflce and Post Office Attlress recover for personal injury 2806 East 15% Street, Suite 205 Brooklyn, Mew York 11235 due to dufendant(s) negligence (718) 513.7400 The retief soughtis Monetary Damages Upon your failure to. appear, judgment will be taken ‘egainst you by default fur the sum which excrads the Jurisdiction of alf lower courtswhich would otherwise have jurisdletlon and whlch warrants the Jurisdist ion of this court with interest from duly 26, 2010 snd the costs of this action DEFENDANT(S) ADDRESS(ES) PETER GIRANT 56-44 196" Street EGIDIO GIRANT JACQUELINE LARROCA 47-68 Weeks Lane 48-44 65" Street Fresh Meadows, NY 11365 Flushing, NY 11361 Woodside, NY 11377 2/08/2812 14:16 7186159466 ZWIRN AND SAULING PC PAGE @3/14 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS saan renteen enepo meX ANA PASTRANA and CARMEN QUINIO VERIFIED Plaintifits) | COMPLAINT. ~againat- inpexa 70094 PETER GIRANI, EGIDIO GIRANT and JAC QUELINE LARROCA, Defendant(s), wane atten Plaintiff(s), complaining of the defendants by their attorney upon information and belief, respectfully allege(s) AS A RA FIRST CAUSE FE JON ON BEHALF OF PLAINTIFF ANA PASTRANA 1 That on July 26, 2010 on a public highway called Francis Lewis Boulevard at or near its intersection with 47" Avenue in the County of Queens, State of New York, the defendant PETER De >5 GIRANI negligently drove a motor vehicle beating Registration #: 96820JL NEW YORK into another motor vehicle in which plaintiff was a passenger. De 2 That this action falls within one or more of the exceptions set forth in CPLR 1602. De 3 That at the time of the commencement of this action, Plaintiff ANA PASTRANA was. and still is, a resident of the County of Queens and State of New York. 4 That at the time of the commencement of this action, Defendant De PETER GIRANI vas, atid stil] is, a resident of the County of Queens, State of New York, 5 That at the time of the commencement of this action, me Defend ant EGIDIO GIRANI was, and stilli is, a resident of the County of ‘Queens, State of New York. 6. That on July 26, 2010, motor vehicle bearing Regist ration #: 96820JL, NEW YORK was oe owned by defendant EGIDIO GIRANI, 02/08/2012 14:18 7186159458 ZWIRN AND Salt -ING PG PAGE 64/14 7 That on July 26, 2010, motor vehi cle bearing Registration #: 96820I L NEW YORK was Sy operated by defendant PETER GIRANI , 8 That on July 26, 2010, at or near the location mentioned above, motor vehicle bearing Vv oO Registration #: 968207L NEW YOR ae K and owned by PETER GIRANT and operated by EGIDIO GIRANI, made contact with a motor vehicle bearing Registration 4: BPZ4942 NEW YOR K, r 9. That on July 26, 2010, motor vehigle bearing Noe Registration #: 968207L NEW YORK was operated by defendant PETER GIRANT with the permission and consent of the owner, EGIDIO GIRANL 10. That on July 26, 2010, motor vehicle bearing Regis tration 4: 96820IL NEW YORK, was er operated by defendant PETER GIRANI withi n the scope of his employment. Il. ‘That at all times herein mentioned, solely as a result of the defendant! 's negligence as aforesaid, , plaintiff has sustained a serious personal injury and/or impairment which resulted in <0 dismemberment; significant disfigurement; fracture; permanent loss of a body organ, or member; significant imitation of use of'a body function or system; loss of normal pursuits and pleasures of life; and/or a medically determined injury or impairment which prevents plaintif€ from performing substantially all of the material acts which cotistituted plaintiff's usual and customary activities for such period of time all as specified by Section 5102 of the Insurance Law, Subsection (d); in all to his damages both compensatory and exemplary in the sum which exceeds the Jurisdiction of all lower courts which would otherwise have jurisdiction and whic h warrants the jurisdiction of this court, FOR A SEC! USE. CTIO) ON BEHALF OF PLAIN TIFF ANA PASTRA NA 12, That on July 26, 2010 ona public highway calledFrancis Lewis Boulevard at or near its intersection with 47" Avenue in the County of Queens, State of New York, the defendant 0 JACQUELINE LARROCA negligently drove a motor vehicle bearing Registration #: EPZ4 942 NEW YORK, in which the plaintiff was a passenger, into another motor vehicle. 82/08/2812 14:18 71861594548 ZWIRN AND SAULINO PC PAGE 85/14 13 That this action falls within one or mor e of the exceptions set forth in CPLR 1602 14 That at the time of the commencem ent of this action, Plaintiff ANA, PASTRANA was, ? AEXi and still is, a resident of the County of Queens and State of ‘New York, 15, ‘That at the time of the commencement of this action, Defendant JACQUELIN E LARROGA was, and still is, a resident of the County of Queens, State of New York. 16, That on July 26, 2010, motor vehicle bear ing Registration #: EP24942 NEW YOR K was owned by defendant LARROCA. 17, That on July 26, 2010, motor vehicle bear ing Registration # EPZ4942 NEW YORK was operated by defendant LARROCA, 18 That on July 26, 2010, at or near the location mentioned above, motor vehicle bearing Registration #; EPZ4942 NEW ‘YORK and owned and ibe operated by LARROCA, ~~ made contact with a motor vehicle bearing Registration #: 968203L NEW YORK. 19. That on July 26, 2010, motor vehicle bearing Registration #: EPZ4942 NEW YORK was v operated by defendant LARROCA within the scope of ker employment. 20. That at all times herein mentioned, solely ay a resul t of the defendant’ 's negligence as aforesaid, plalatiff has sustained a serious perso nal injury and/or impairment which resulted In O dismemberment; significant disfigurement: fract ure; permanent loss of a body organ, or memb er; significant limitation of use of'a body fiviction or system; loss of normal pursuits and pleasures of life and/or a medically determined tajury or impa irment which prevents plaintiff from performi ng substantially all of the material acts which const ituted plaintiff's usual and customary activities for such period of time all as specified by Section 5102 of the Insurance Law, Subsection (d); in all to his damages both compensatory and exemplar y in the sum which exceeds the jurisdic tion of all lower courts which would otherwise have Juvisdiction and which warrants the jurisdiction of this court. a2/ee/2812 14:16 7186159468 2WIRN AND SAUL-IND PC PAGE 665/14